Under Pennsylvania law, the proper terms for the persons in charge of your Estate Planning documents are called your “fiduciaries” and I refer to these people – those in charge – as the “Bosses.” Each boss has powers, and these powers can be summarized very simply.

Pa Estate Law – 5 – Powers – Summary

Agent (under a Power of Attorney) can help manage all of your affairs.

Surrogate (under an Advance Directive for Health Care) can execute your end of life decisions.

Executor (under a Will) can administer your Estate.

Trustee (under a Trust) can monitor and manage your Trust.

Pa Estate Law – 5 – Powers – Note

Again, and although a technical knowledge of the parameters of these various powers can be useful, it is not the point of this article. The focus is to illustrate that an Agent, a Surrogate, an Executor, and a Trustee can generally possess broad powers to act for you under that respective document.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is vast.

When Congress enacted HIPAA on August 21, 1996, however, one of its critical concerns was protecting the privacy of the average American citizen. Prior to HIPAA’s enactment, medical records had become increasingly accessible as a result of technological advances that contributed toward widespread information sharing.

HIPAA targeted the potential for fraudulent or improper disclosure and transmission of medical records. In doing so HIPAA has created a challenge for lawyers in Pennsylvania who seek to protect the rights of clients who need to exercise Powers of Attorney for their loved ones within the HIPAA environment.

This article, which I published on the Martindale-Hubbel website in Spring of 2008 (with a few minor changes) is still relevant today. You can also review this article in the series of posts that have been – and will be – published in this blog.

Pa Power of Attorney – HIPAA – 5

The Effective Clause

To address this issue of presently effective powers, I use a very specific clause in my clients’ Durable General Powers of Attorney, as well as in my Advance Directives for Health Care (“Living Wills”).

This clause addresses and satisfies both the Federal HIPAA laws and the Pennsylvania State Laws regarding Powers of Attorney and “Living Wills,” by specifically addressing – among other things – your Agent’s presently effective power and authority to make any and all health care decisions on behalf and your Agent’s ability to give informed consent for any and all health care decisions.

Presently Effective

As stated previously, this article is limited to the impact that the HIPAA Privacy Rules have on General Durable Powers of Attorney that are presently effective.

In light of the fact that the determination of capacity is central to the effectiveness of a Power of Attorney (as well as to many other legal documents), the HIPAA Privacy Rules should not create problems for health care purposes if the Agent possesses the presently effective ability to make health care decisions on behalf of a Principal.

With a properly drafted Power of Attorney, if the Principal becomes incapacitated, the authority of the Agent is not interrupted.

Conversely, the authority of the Agent will be interrupted if the Power of Attorney is not presently effective and a determination of capacity is required to be made.

This situation exists, for example, when an Agent is to act under a Springing Power of Attorney or when a Successor Trustee is to act under a Trust Agreement.

As these scenarios are outside the realm of this article, I would suggest referring to the article, HIPAA-POA: The Effect on Healthcare Power of Attorney by Stephen H. Frishberg, Esquire.

This article is contained in the PBI Publication No. 2004-3355, 11th Annual Estate Law Institute.

This article, which I published on the Martindale-Hubbel website in Spring of 2008 (with a few minor changes) is still relevant today. You can also review this article in the series of posts that have been – and will be – published in this blog.

Pa Powers of Attorney are designed to allow an individual the ability to grant authority to another in order to allow the Pa Agent to act on behalf of the Pa Principal.

Pa Powers of Attorney can be drafted to be effective now (current powers) or effective in the future occurrence of a specific event (springing powers).

Pennsylvania law (20 Pa.C.S. § 5602(h) and (i)) allows the Pa Principal under the Pa Power of Attorney to grant the Pa Agent the power to authorize “my admission to a medical, nursing, residential or similar facility and to enter into agreements for my care and the power to authorize medical and surgical procedures.”

While Pa Powers of Attorney can be drafted to provide for a wide variety of situations, this article is limited to the impact that the Privacy Rules have on General Durable Powers of Attorney that are presently effective.

Pa Powers of Attorney – HIPAA – Authority

If a Pa Power of Attorney grants the Pa Agent the present ability to make health care decisions on behalf of the Pa Principal, the Pa Agent qualifies as the Personal Representative under the HIPAA Privacy Rules.

However, if a Pa Power of Attorney does not grant the Pa Agent the present ability to make health care decisions on behalf of the Pa Principal to the Pa Agent, the Pa Agent is not considered the Personal Representative under the HIPAA Privacy Rules, regardless of the scope of the health and medical authority otherwise granted to the Pa Agent.

In order to be effective under HIPAA, the specific authority granted to the Personal Representative (Pa Agent) under the state defined Pa Power of Attorney rules thus must be consistent with the definition of Personal Representative under the federally defined HIPAA Privacy Rules.

Under the Privacy Rules, a Pa Power of Attorney that is intended to allow the Personal Representative (Pa Agent) the power to access medical records, to authorize information disclosures, and to Participate in medical decisions on behalf of the Principal, but not drafted to allow the Personal Representative (Agent) the presently effective power to make health care decisions on behalf of the Pa Principal, may be technically deficient, and the Pa Agent may lack the critical necessary powers to act on behalf of the Pa Principal in time of need.

Although some health care professionals may rely upon a Pa Power of Attorney that is not drafted to comply with the Privacy Rules, they do so at their own peril.

This article, which I published on the Martindale-Hubbel website in Spring of 2008 (with a few minor changes) is still relevant today. You can also review this article in the series of posts that have been – and will be – published in this blog.

Historically, health care providers have accepted Powers of Attorney without questioning their validity.

In the post-HIPAA world, however, one can expect a higher level of scrutiny. In fact, the HIPAA Privacy Rules can potentially create a conflict with respect to the traditional language of Powers of Attorney.

Thus, to be effective, Powers of Attorney should be drafted to comply with the requirements of the HIPAA Privacy Rules.

Pa Powers of Attorney – HIPAA – Privacy

The HIPAA Privacy Rules protect all individually identifiable health information (defined as Protected Health Information or PHI) of an individual held or transmitted by covered entities (defined as health care providers who transmit any health information in electronic form).

Although the HIPAA Privacy Rules allow certain uses and disclosures of such information without the consent of the Individual or that Individual’s Personal Representative (defined as a person who has the present authority to make health care decisions for that Individual), the HIPAA Privacy Rules, with few exceptions, prohibit the disclosure of PHI unless the Individual or the Personal Representative authorizes it in writing.

This article, which I published on the Martindale-Hubbel website in Spring of 2008 (with a few minor changes) is still relevant today. You can also review this article in the series of posts that have been – and will be – published in this blog.